P L D 1975 Karachi 464 (PLP)

2. The main application is directed against an order of the learned 2nd Additional District Judge, Karachi, dated 30th of April 1971, dismissing the present petitioner's Misc. appeal and rejecting his plea for grant of an interim injunction restraining the respondent No. 1 from carrying on the construction on Plot No. 66 MR‑4, Rampant Row, Karachi.

3. The petitioner owns Plot No. 65 which is adjacent and contiguous to the respondent's Plot No.

66. Originally an old and dilapidated build ing stood on the petitioner's plot. This building was, however, demolished as it was found to be in a dangerous state. The only part of the said building which survived was its west facing wall overlooking the first res pondent's plot. Since this wall was found to be in a reasonably sound state its demolition was not pressed by the Municipal Corporation. The learned counsel for the petitioner admitted before me that this wall stood along the boundary separating the petitioner's plot from the respondent's plot.

4. It was alleged by the petitioner that on or about the 24th of September 1970 the first respondent started interfering with the property of the petitioner by constructing a building on his plot which encroached upon the petitioner's plot. This encroachment was explained at the bar by stating that the respondent bad dug into the foundations of the above mentioned wall belonging to the petitioner. The plaint filed by the petitioner does not however disclose the extent of encroachment with any degree of precision. On this allegation the petitioner, on the 13th of March, that is, about six months later filed a suit to the Court of the Civil Judge, 1st Class, Karachi, for a declaration that the petitioner was entitled to enjoy his property to its fullest value, without the interference of the defendant and for a mandatory injunction directing the defendant to remove the foundation of the pillars from the petitioner's plot and also to repair the wall and restore the same to its original position. There were vague allegations in the plaint suggesting that the respondent had also obstructed the petitioner's right to air in respect of the plot.

5. An interim injunction was sought from the first Court which was eventually rejected. A Misc. appeal to the learned District Judge was also dismissed by the learned Additional District Judge. Hence the present revision application.

6. The first respondent who has entered his appearance to contest the present revision application contended that there was in fact no encroachment whatsoever on any part of the petitioner's plot and that the constructions being carried out by the respondent were fully according to the construction plan as approved by the municipal body.

7. As observed earlier, this Court had passed a status quo order on the 17th of May 1971 while admitting the main petition to regular hearing. The effect of this order has been to stop all further construction on the respondents plot. The status quo order came up for confirmation before my learned brother Ghulam Rasool K. Shaikh, J. and by his order dated 20th of May 1971, he directed the Nazir of this Court to inspect the site and make a report. Accordingly the Nazir of the Court issued notice to the parties intimating his intention to visit the site on the 26th of May 1971 sit 3‑00 p m. and requiring them to be present. Neither the present petitioner nor his counsel could make it possible to be present on account of certain reasons and they requested the Nazir for shifting of the date. The Nazir did not, however, find it possible to postpone the inspection and on the 26th of May 1971 he visited the site accompanied by the respondent No.

1. His report of site inspection dated 27th of May 1971, is on the file. According to the Nazir the wall in question was an old stone masonry wall and was a part and parcel of the old structure which originally stood on the first respondent's plot. In other words in his opinion the disputed wall was a part of the respondent's old structure while the petitioner's contention is that this wall is a part of the petitioner's old structure. The reason for the conclusion reached by the Nazir is that there was an undemolished small portion of a similarly built wall at right angle to the disputed wall abutting into the respondent's plot. The overall view of the Nazir was that the res pondent was carrying out construction on his own plot and that the R. C. C. pillars of the new construction were on the respondent's plot .

8. The learned counsel for the petitioner has vehemently questioned the report of the Nazir and has characterised it as one sided. He has further drawn my attention to the written statement filed by the Municipal Cor poration in the suit pending in the Court below. In para. 2 of the written statement the Municipality admits that the old buildings on the petitioner's Plot No. 65 was declared as dangerous and was subsequently demolished by the Architect Control Department but that one wall was not demolished and was left as the same was found fairly strong and did not pose any danger. The learned counsel has also filed the site plan bearing the signature of the Head Draftsman of the K. M. C. which indicates that the disputed wall was on the boundary separting Plots No. 65 and

66. As noted by me earlier the learned counsel for the petitioner has also admitted before me that the wall in question was along the boundary separating the two plots. On the basis of this admission it seems to me that the whole dispute between the parties has become purely of an academic nature. If indeed the wall in question is one separating the two plots the question of encroachment becomes almost impossible of precise appraisement. In view of the above position I enquired from the learned counsel for the petitioner as to what exactly the nature of the alleged encroachment was. He answered this question by stating that the first respondent had dug into the foundations of the wall for basing the pillars of his new construction and the extent of this encroachment would be about 1 or 1 foot. It is contended that this encroachment extends along the width of the wall itself. Even if the wall in question was situated wholly in the area comprising the petitioner's plot it does not seem that the construction being carried out by the respondent No. 1 bas in any way extended beyond the limits of the said wall which admittedly stands along the boundary of the two plots.

9. Considering all the circumstances it seems to me that the essential character of the disputed wall is that of a common wall and unless it is at least alleged that the respondent's construction extends beyond the said wall and into the plot of the petitioner it would clearly be unfair to stop the further construction of a building which apparently is at an advance stage. It is admitted that three stories of the said building have already gone UP.

10. This brings me to another aspect which would tend to disentitle the petitioner to interim relief. According to para. 18 of the plaint filed by the petitioner, the interference with his plot started on or about the 24th of September 1970. The suit was filed as late as 13th of March 1971. It is the essence of all interim relief that the action in which it is claimed should be brought without unnecessary delay. In the instant case the encroachment in ? question took place on or about the 24th of September 1970, and it was not till about six months later that the action challenging it was, brought by petitioner. The petitioner, has, therefore, forfeited his right to interim relief by this unexplained delay and during this period the building of the respondent was allowed to reach in an advance stage of construction. While on this aspect I may mention that when the learned Civil Judge inspected the site on the 5th of April 1971, he had noted that three stories of the building were nearly complete and that the pillars on which the construction was raised were touching the common wall. This inspection note is consistent with the report of the Nazir of this Court himself and also with the data placed by either side on the file of the suit.

11. Learned counsel for the petitioner further contended that the first respondent had damaged the disputed wall by digging the foundations of the pillars along it. The determination of this question is not, however, relevant for the disposal of the present petition. If indeed any damage has been caused the act itself is complete and issuance of a temporary injunction restraining the respondent from completing construction of the building will note alleviate it. On the other hand if the petitioner is able to establish damages; finally in the trial Court he could obtain an order requiring the first respondent to take adequate measures in strengthening that a wall, subject, however, to the admissibility of such relief in the present suit. It was lastly contended by the learned counsel for the petitioner that the construction it, question had operated to block and to obstruct the free passage of light and air to the petitioner's plot. I have not been able to understand the rationale of this objection. The disputed wall, as the photo graph filed by the Nazir indicates, is one solid structure of the height of about three stories. There are no openings in this wall except for one or two visible apertures made by the removal of old beams and raftars. Irrespective of the question of ownership of the wall it is quite obvious that this wall, as it stood and as it now stands, did not permit the passage of air or light by the existence of windows. The position is not different by the construction of the respondent's building.

12. I may lastly mention that the grant of interim relief is a discretion of the trial Court which is subject to correction by the appellate Court. As observed by the Supreme Court in P L D 1970 S C 139 'the revisional powers of the High Court under section 115, C. P. C., are primarily intended C for correcting errors made in the exercise of jurisdiction''. Discretionar orders, it has been observed, cannot be interfered with. unless found fanciful and arbitrary. I have perusal the orders of the two Courts below minute and I dare say that there is little in them of which it could be said that they are fanciful or arbitrary. On the other hand I have considered all the facts urged before me by the learned counsel and I am of the view that the ends of justice will not be served by restraining the first respondent from completing their construction.

13. For the reasons given above I would discharge the status quo order issued on the 17th of May 1971. K. B. A. Petition dismissed.